AND HER MAJESTY'S ATTORNEY GENERAL FOR THE STATE OF TASMANIA

1 On the authorities I am required to direct myself as follows and I do so:-

1 There is no rule of law that an option given by will to a named person is prima facie personal to the donee only and the statement to that effect in Jarman on Wills 7th edn at p73 is incorrect.

2 The question whether such an option to purchase is exercisable only by the donee personally or is transmissible to his executors or assignees depends on the true construction of the will in the light of any circumstances properly admissible in evidence.

3 The solution depends on the intention of the testator as expressed by the words he has used construed in the light of relevant surrounding circumstances.

4 It follows from rule 3 that I must accept that the testator did have an intention which will solve this problem: not only that, but he expressed that intention. That being so, I must accept that he adverted to the problem.

5 I must not speculate about the testator's intention: but I must produce an answer which is positive in character: to resort to a not unfamiliar answer "I do not know" is, impliedly forbidden.

2 The following cases appear to affirm each and all of the above propositions expressly or by necessary implication :-

Skelton & Ors v Younghouse & Anor [1942] AC. 57 1; Sharp v The Union Trustee Company of Australia Ltd & Ors [1944] HCA 35; (1944) 69 CLR 539 at p545, 550, 554: In re Avard (decd); Hook v Parker [1948] 1 Ch 43; In re Zerny's Will Trusts [1968] 1 Ch 415.

3 On balance I find that the option to purchase the properties is exercisable by the personal representatives of the late James Eric Scott and was not personal to him.

4 The decisive factors which lead my mind to that result, on what is largely a matter of impression, are the following:-

(1) The benefit conferred by the exercise of the option is a valuable one involving as a condition of its exercise nothing more than the payment of a sum of cash to the estate and, hence, required nothing in the nature of a qualification personal to the only donee named. In default of indications to the contrary one would incline to the view that so valuable a right was to be within the power of the named beneficiary to dispose of and his estate should reap the benefit. In the context of this will that consideration is strong. The testator appears to have had as his prime motive a desire to benefit the named beneficiary, the late James Eric Scott, subject only to his desire to discharge his duty to his widow. It will be noted that he appointed the late James Eric Scott his trustee, a trustee who, unlike his co-trustee, was not to receive a gift as remuneration for his services as a trustee. Upon the death of the testator's widow, James Eric Scott was to receive all the deceased's share and interest in Jacksons Lock & Brass Works Pty. Ltd And James Eric Scott was to receive the ultimate residue of the estate through the gift to him of the testator's share and interest in the company.

(2) On the point at issue, the representatives of the late James Eric Scott are competing not with children of the testator but with a number of charities.

(3) It cannot be said that the terms of this option manifest an intention that the option was to be exercised only by the late James Eric Scott and no-one else and not by assignees or personal representatives.

(4) It can be seen that a strong motive in the mind of the testator was to see his company continue in existence, an aim which could be facilitated by having the premises and the business in the same ownership.

5 I accept Mr Crawford's argument to the effect that the words "the State Government Valuer for Launceston for the time being" should be construed as a reference to the Valuer-General. The intention is clear despite the misnomer or misdescription. The testator was referring to "the State Government Valuer for Launceston" and hence, he was excluding Commonwealth Government valuers, Local Government valuers and private valuers. If the words "for Launceston" had been excluded the remaining words, as at the relevant time, would have contained a clear reference to the Valuer-General. The analysis of the history of the relevant legislation contained in Mr Crawford's argument shows that the addition of the words "for Launceston" discloses a slight misunderstanding of the centralised system. But the addition of those words does not cast doubt on the conclusion that the Valuer-General is the authority indicated.

6 The value is to be fixed as at the date of death of the widow. The right to have the land by the exercise of the option accrued at that date. Or, in other words, the will is to be construed as offering the properties with effect from the death. (Talbot v Talbot) [1968] 1 Ch l at pp13 and 16.)

7 The evidence establishes that an organization by this name existed at the date of the testator's death. Therefore, there is no question of the gift lapsing; the funds were dedicated to that organization at that date. The fund is impressed with a trust for that charity (see In re Wright, Blizzard v Lockhart [1954] 1 Ch 347 at 362-363:

8 In re Slevin; Slevin v Hepburn [1891] 2 Ch 236 at 240-241; In re Soley (1900) 17 TLR 118; In re Woollnough: Woollnough v Trustees of the Property of the Church of England in Tasmania and others [1953] Tas SR 25; Joseph Batts Estate No96/68 (unreported) Burbury CJ).

9 Funds standing to the credit of the organization have in fact previously been applied cy-pres by an order made in Robinson v Attorney-General & Anor File No M299 of 1980 and this fund should be dealt with similarly. It should be added to the Bush Nursing Fund Account referred to in paragraph 10 of the affidavit of Dr Mackay-Smith. But the court has a duty to see that the fund is used in a way which is as near as practicable to that intended by the testator. Consequently, this bequest should be used to assist District Nursing Centres in the Northern region of the State and no other District Nursing Centre. The records of the account will need to be kept with that end in view.

10 It is clear that St Giles Home is the appropriate recipient of this share.

11 The appropriate recipient of this share is The Launceston Kindergarten Association.

12 The governing principle is "a charitable trust is a trust for a purpose not a person" (Attorney-General for NSW v Perpetual Trustees Co Ltd [1940] HCA 12; (1940) 63 CLR 209 at 222).

13 A gift to a charitable institution or body, without more, is to be held for its general purposes and objects (Re Wright; Westley v Melbourne Hospital [1917] VicLawRp 21; [1917] VLR 127 at 153 per Hood J, The Law of Charitable Trusts in Australia: F M Bradshaw page 81). But in this case we have a gift to the hospital or, to put it accurately, to the Board of the hospital, with a clear indication that the purpose was to benefit the Deep Therapy Department. It is not a bare gift to the hospital. We have a clear statement of the purpose intended and, by implication, all other purposes are excluded. The Board became a trustee of the fund for that purpose and to apply the fund to any other purpose would constitute a breach of trust.

14 It is practicable to apply the fund to the specific purpose the testator had in mind by means of a cy-pres scheme and that must be done. That means, of course, that the scheme will favour the W P Holman Clinic at the Launceston General Hospital.

15 For these reasons the questions are answered as follows:

Q1 Whether in the events that have happened and upon the true construction of the Will of the said David Sydney Jackson deceased, the direction therein "To sell and dispose of my properties situate at numbers 106, 108 and 110 Cameron Street Launceston aforesaid .... PROVIDED THAT the said James Eric Scott shall have the right to purchase the properties in Cameron Street Launceston aforesaid at any time within six months of the death of my said wife at a price that is ten per centum less than the value fixed on such properties by the State Government Valuer for Launceston for the time being" conferred any effective option.

Q2 If the answer to question 1 be in the affirmative, whether in the events that have happened and upon the true construction of the said Will, the direction therein "to sell and dispose of my properties situate at numbers 106, 108 and 110 Cameron Street, Launceston aforesaid PROVIDED THAT the said James Eric Scott shall have the right to purchase the properties in Cameron Street Launceston aforesaid at any time within six months of the date of the death of my wife":-

(a) Gave to James Eric Scott an option to purchase the said property situate at numbers 106, 108 and 110 Cameron Street Launceston, which option was personal to the said James Eric Scott and not exercisable by any other person or persons not excepting his personal representatives after his death; or

(b) Granted to the said James Eric Scott an option to purchase the said properties, exercisable on his behalf by his personal representatives should he predecease the testator's wife.

Q3 If the answer to question 2 (b) be in the affirmative, whether in the events that have happened and upon the true construction of the said Will, the reference therein contained to "the value fixed on such properties by the State Government Valuer for Launceston for the time being":-

(a) is to be read and construed as being the value fixed on such properties:-

(ii) some other, and if so which officer or person; and

(i) the value fixed as at the time of the exercise of option; or

(ii) the value fixed as at some other time and if so which time.

3(b)(ii)- the value fixed as at the date of the death of the testator's widow.

Q4 Whether the Northern Tasmanian Bush Nursing Association is an identifiable charity in which the gift of a share of the balance proceeds of the sale of the said Cameron Street properties vests.

Answer: 4 It was an identifiable charity at the date of the death of the testator but it has ceased to exist. This fund must be applied cy-pres in accordance with the reasons for judgment.

Q5 Whether the Launceston Crippled Children's Fund is an identifiable charity in which the gift of a share of the balance proceeds of the sale of the said Cameron Street properties vests.

Q6 Whether the Launceston Free Kindergarten is an identifiable charity in which the gift of a share of the balance proceeds of the sale of the said Cameron Street properties vests.

Q7 Whether the Deep Therapy Department of the Launceston Public Hospital is an identifiable charity in which the gift of a share of the balance proceeds of the sale of the said Cameron Street properties vests.

Answer: 7 The fund must be applied to the specific purpose indicated by the testator in his will by means of a cy-pres scheme which, in effect, will favour this particular aspect of the work of the W P Holman Clinic at the Launceston General Hospital.

Q8 If the answer to any one or more of questions 4, 5, 6 and 7, be in the negative, whether on the true construction of the Will the gift referred to in such question:-

(c) Is to be distributed in equal shares to each of the other named beneficiaries of the balance of the proceeds of the sale of the said Cameron Street properties (other than any beneficiary in respect of whom questions 4, 5, 6, and 7 shall have been answered in the negative).

Answer: 8(a) The gifts referred to in question 4 and 7 must be applied cy-pres in accordance with the reasons for judgment.